Ashok Kumar Aggarwal S/O R. B. ... vs Union Of India Through on 16 December, 2011 PRINCIPAL BENCH NEW DELHI Original Application No.2842 of 2010 This the 16th day of December, 2011 HON BLE SHRI JUSTICE V. K. BALI, CHAIRMAN HON BLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Ashok Kumar Aggarwal S/o R. B. Aggarwal, R/o 56, Ashoka Road, New Delhi-110001. Applicant ( By Shri S. K. Gupta, Advocate ) Versus 1. Union of India through Secretary, Department of Revenue, Ministry of Finance, North Block, New Delhi. 2. Chairman, Central Board of Direct Taxes, Department of Revenue, Ministry of Finance, North Block, New Delhi. 3. Director General of Income Tax (Vigilance), 1, Deen Dayal Upadhyaya Marg, 1st Floor, Dayal Singh Library, New Delhi. Respondents ( By Shri R. V. Sinha, Advocate ) O R D E R Justice V. K. Bali, Chairman: Ashok Kumar Aggarwal, an Indian Revenue Service (Income Tax-1985 batch), after putting in service for about a period of 14 years, was placed under suspension vide order dated 28.12.1999. Eversince then, he is under suspension, which, on reviews, is being extended from time to time. The normal service span of an employee may be 30 to 35 years, out of which the applicant has remained under suspension for a period of 12 years. Suspension of the applicant on review from time to time has been extended primarily for his being involved in two criminal cases. The status of the criminal cases is such that there does not appear to be any hope that the same will come to an end in near future. In fact, as we can perceive, they may continue for quite some time, and if the respondents may take the pendency of the said cases as the only ground to justify his continued suspension, it is possible that the applicant may retire under suspension. In the present Original Application filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, the prayer is to quash the order placing him under suspension, and such orders by which, on reviews, decision has been taken to continue to keep him under suspension. The applicant has taken variety of grounds in support of the prayer as mentioned above, but what primarily has been canvassed before us is that the respondents had not only taken totally wrong facts while reviewing suspension of the applicant, but have singularly failed to take note of the developments that took place during the period of 12 years, which they were required to do while carrying out the exercise of reviewing his suspension. Inasmuch as, the respondents have taken into consideration non-existent facts and have singularly failed to take note of the developments that took place from time to time, Shri S. K. Gupta, learned counsel representing the applicant would vehemently contend that this Tribunal may declare that continuous suspension of the applicant as illegal, and the applicant, at this stage at least, is required to be relieved of his trauma of being out of service and suffering unlimited and unmitigated insult, which automatically comes to an employee under suspension. With a view to evaluate the frantic plea tampered with compassion of the applicant, so canvassed by the learned counsel representing him, that the applicant be restored to his position for the remaining period of service, which may not be more than 10 or 12 years by now, it would be appropriate to take into consideration the facts of the case. 2. The facts as may emanate, and as set out in the Application, shorn of unnecessary verbiage, and as may be relevant to the controversy in issue, would reveal that at the relevant time in 1988 the applicant was appointed as Deputy Director (Enforcement) in the Enforcement Directorate. The applicant claims an extraordinary tract record of service. It is his case that as Deputy Director, he was dealing with sensitive cases pertaining to violations under FERA, and that since he was enforcing the law of the land including various provisions of FERA, he became an eyesore for his superiors. He was compelled to change the track of investigation constraining him to make number of written representations to the Revenue Secretary against the then Director of Enforcement between July, 1998 and November, 1998, on which explanation of the Director was sought. Perturbed with his explanation sought by the Revenue Secretary, it is further his case, the Director forwarded a year old false complaint of one FERA accused to CVC, and the applicant was compelled to leave the Enforcement Directorate prematurely on 31.12.1998, and ultimately a case was got registered by the influential FERA accused on the basis of the said false complaint through CBI vide RC No.S18/E0001/99 dated 29.01.1999 against unknown officers of the Enforcement Directorate. During investigation of the said case, the applicant was arrested on 23.12.1999 and placed under deemed suspension vide order dated 28.12.1999. The applicant called in question the order of his suspension before this Tribunal by filing OA No.783/2000, which was allowed vide order dated 17.01.2003. In compliance of the judgment of this Tribunal, the respondents issued office order dated 25.04.2003 revoking suspension of the applicant, but vide another order of even date the applicant was again put under suspension. Constrained thus, the applicant filed yet another OA No.1105/2003, but the same was dismissed vide order dated 09.05.2003. This order came to be challenged by the applicant by way of writ petition bearing WP (C) No.3789/2003, which was withdrawn vide order dated 11.08.2010. The short order recorded on that behalf reads as follows: Dismissed as withdrawn in view of the prayer made in CM No.10695/2010. In the year 2004, because of amendment in the CCS (CCA) Rules, 1965, it became mandatory to review suspension of suspended employees of the Government of India, and it came to be provided that unless suspension is reviewed within the stipulated period as prescribed under the rules and instructions, the same would become invalid. Suspension of the applicant was periodically reviewed but was continued indefinitely without restricting to the outer limit, which, according to the applicant, would render the order of suspension as illegal. We may not refer to further pleadings made in this regard, as on an earlier occasion when the matter came up for hearing before us and the point as referred to above was pressed into service, and in that regard, precedent of a coordinate Bench of this Tribunal was also cited, considering that the said point may not have been correctly decided, we referred the case for decision to the Full Bench, and vide detailed order dated 04.03.2011, the point as mentioned above was repelled and the earlier precedent was held not to be good law. 3. Pleadings of the case would further reveal that after the order dated 25.04.2003, the respondents had reviewed the case of the applicant on 14 occasions till such time the present OA came to be filed, and on each and every occasion, the respondents have been changing their stand. In the first two reviews, the respondents were harping on the criminal cases pending against the applicant, and in the third review, the respondents, in addition to the criminal cases said to be under trial, took then additional ground of departmental proceedings pending against the applicant up to the date of order dated 28.07.2007. Thereupon, the respondents took the stand in the next two reviews that allegations of grave nature were pending against the applicant. Thereafter, when the review was conducted, apart from the pendency of criminal allegations of grave nature, the respondents took the stand of not filing WSD by the applicant in another departmental enquiry. In the next two reviews, it is pleaded that the respondents would give no reasons in the orders continuing suspension of the applicant. The respondents are thus stated to be trying to reflect the criminal cases as well as the departmental proceedings as grounds for continuous suspension of the applicant. 4. Insofar as, the two criminal cases against the applicant are concerned, one is as regards RC No.S18/E0001/99 dated 29.01.1999, which was lodged by CBI on the basis of a complaint, which, according to the applicant, was false, made by a known FERA accused, to which the sanction order was issued by the sanctioning authority on 21.06.2002. The applicant challenged the sanction order by filing criminal writ petition no.1401/2002. It is the case of the applicant that in order to falsely implicate him, CBI had malafidely obtained a false statement from another FERA accused, namely, Ashok Verma, against whom the applicant had initiated as many as ten enquiries, later on resulting in FERA violation of more than Rs.100 crores. It is averred that Abhishek Verma was given an assurance that no harm would be caused to him in case he made a false statement against the applicant, and accordingly, he was made an approver in the case, and further that on the basis of the false statement of Abhishek Verma, the applicant was arrested by CBI on 23.12.1999. The applicant challenged the order making Abhishek Verma an approver before the Hon ble High Court of Delhi, which, vide order dated 20.08.2007 set aside the order making him an approver in the case on the ground of suppression and misrepresentation of facts by CBI. CBI filed SLP (Crl.) Bo.7266/2007 against the order aforesaid, and while issuing notice on the said petition of CBI, the Hon ble Supreme Court stayed trial against the applicant vide order dated 10.12.2007. 5. It may be appropriate at this stage to mention that the case RC No.S18/E0001/99 dated 29.01.1999 was registered by CBI against unknown officers of Enforcement Directorate on the complaint of a FERA accused Subhash Barjatya that a fax message showing transaction of USD 1.5 lakh from the account of Rolalle Foundation, Swiss Bank Corporation, Zurich to the account of S. K. Kapoor, HSBC Bank, Hong Kong, found and seized from his office by the officials of Enforcement Directorate on 01.01.1998, was a forged document. As mentioned above, it is further the case of the applicant that during investigation, false statement was obtained from another FERA accused, namely, Abhishek Verma, that he had forged and planted the said tax message in the office of Barjatya at the instance of the applicant. These are the allegations against the applicant in the case aforesaid. It is, however, the case of the applicant that in order to verify the genuineness of the said fax message, a Letter Rogatory was got executed by CBI through Special Judge, CBI, Delhi on 29.01.2001, and a reply was received from Federal Department of Justice and Police, Berne, Switzerland on 30.07.2001 confirming that the alleged fax message had indeed been sent by the bank to Barjatya, but by mistake. On the basis of this document, the case of the applicant is that case RC No.S18/E0001/99 dated 29.01.1999 is nothing but to frame him, which is based upon the statement of the approver, i.e., a co-accused with the applicant, and the statement has been obtained from the approver by CBI by promising soft paddling against him. The statement of the approver, it is further the case of the applicant, would be totally false in view of the Letter Rogatory confirming that the alleged fax message had indeed been sent by the Bank to Barjatya, even though by mistake. 6. Insofar as, the other criminal case against the applicant pertaining to RC No.S19/E0006/99 dated 07.12.1999 is concerned, the same was lodged by CBI and the sanction order was obtained on 26.11.2002. It is the case of the applicant that the sanctioning authority issued the sanction order without considering and examining the relied upon material since the same had not been sent by CBI. The applicant challenged the aforesaid sanction order before the trial court and thereafter before the High Court by way of revision petition No.587/2007, which was allowed vide order dated 03.10.2007, giving conclusive findings that the declaration made in the sanction order that the same had been issued after considering and examining the relied upon material including statements of witnesses was incorrect, since CBI, admittedly, did not send the relied upon material. The High Court further directed that the trial court, before hearing the arguments on the charge, should decide the validity of the sanction order being preliminary issue, and if required, summon and cross examine the sanctioning authority. Thereupon, on being summoned, the then Finance Minister, who was the sanctioning authority in the case, filed an affidavit dated 03.11.2007 in the trial court stating therein that no relied upon material had been sent by CBI and he had approved the sanction order in a routine manner, and that in the process aforesaid, justice had been miscarried. The respondents challenged the order aforesaid of the High Court before the Supreme Court by filing SLP (Crl.) No.7601/2007. While issuing notice, the Apex Court also stayed the proceedings/trial against the applicant. The case aforesaid is a case of possessing disproportionate assets by the applicant. It is the case of the applicant that the investigating agency has clubbed the income and assets of his family members with his income, whereas, these assets already stood declared and assessed by income tax and wealth tax department. Insofar as, departmental proceedings are concerned, both the enquiries have been set aside by the Tribunal vide common order 24.02.2010, and till date no charge-sheet has been issued to the applicant. The applicant has then given details of representations made by him, together with the prayers, reasons and status thereof, mention whereof, if necessary, we will make while evaluating the contentions raised on behalf of the applicant. 7. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and by filing their counter reply contested the cause of the applicant. By way of preliminary objections, it has been pleaded that the applicant has challenged all the orders of suspension issued by the competent authority during the period 02.04.2004 to 27.07.2010, and, therefore, the OA would be barred by the provisions of rule 10 of the CAT (Procedure) Rules, 1987. It is then pleaded that the applicant has challenged many of these orders in past as well and the same have been adjudicated, and thus the OA would be barred by the principle of res judicata/constructive res judicata. The suspension order, it is then stated, has been passed and continued by the competent authority after taking into account all material facts, relevant rules and instructions on the subject and the same would not suffer from any illegality and/or infirmity and, therefore, this Tribunal may not interfere. On merits, it is pleaded that the applicant was placed under suspension on 28.12.1999 w.e.f. 23.12.1999, and periodical reviews of his suspension have been carried out from time to time. Reference is to seventeen orders of reviews which have been carried out up to 27.07.2010. The broad facts as given by the applicant have not been disputed, even though various paras of the OA have been replied by stating that the contents thereof are matter of record. As regards criminal cases registered against the applicant, it is pleaded that the same need no reply from the replying respondents as the same would pertain to CBI. However, as regards averments regarding departmental proceedings, it is pleaded that the applicant filed OA No.2680/2008 on the ground of non-approval of the charge-sheet dated 13.09.2001 by the disciplinary authority. The Tribunal, vide order dated 24.02.2010 set aside the said charge-sheet, with liberty to the department to issue fresh charge-sheet. It is then pleaded that the representations of the applicant were forwarded to the suspension review committee to be considered at the time of review, and the views of CBI have also been asked from time to time with respect to revocation of suspension of the applicant, but CBI every time expressed the view that his suspension be not revoked. As regards the remarks made by the OSD to the Finance Minister in response to the reply to the VIP reference, it is stated that the same was discussed in the office, and in view of the technical and legal issued involved in the matter, the same was put up before the Finance Minister after further examination. 8. The applicant has filed rejoinder. As regards preliminary objections, it is pleaded that the applicant had challenged the order of suspension in this Tribunal, and his OA in that regard was allowed on 17.01.2003. Vide order dated 25.04.2003, his suspension was revoked, but he was again put under suspension on the same day, whereupon he filed another OA, which was dismissed by the Tribunal. The applicant filed a writ petition before the Hon ble High Court but the same was withdrawn with a view to challenge the orders passed in review, which were being issued in compliance of GSR No.2 dated 03.01.2004. It is pleaded that the respondents have tried to mislead this Tribunal by falsely stating that these orders had been challenged in the past and the same were adjudicated upon. It is further pleaded that the orders of suspension were never challenged in the light of GSR No.2 dated 03.01.2004. From a perusal of the OA, the applicant pleads, it would be clear that the material facts like status of the criminal cases, status of the departmental proceedings, various judgments/orders passed by the High Court in favour of the applicant, including orders directing registration of FIRs against the investigating officers, and orders of the Apex Court staying the proceedings in the trial court, have not been taken into consideration during meetings of the suspension review committee. It is then pleaded that the applicant had even raised the point of discrimination, but even that was not considered. As regards merits, the rejoinder is by and large reiteration of the facts given in the OA. The applicant, in detail has given relevant extracts of the minutes of the review committee meetings held on 03.02.2009, 03.08.2009, 20.01.2010 and 15.07.2010, mention whereof, if necessary, shall be made while evaluating the contentions raised on behalf of the applicant. 9. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. The applicant chose to address arguments himself in absence of Shri S. K. Gupta, his learned counsel, who took over on his arrival. The applicant, when argued the matter himself, was at pains to explain the way and manner he has been dragged by those who had vested interests to save themselves, by stating that both the criminal cases against him are totally false; the same have in fact been planted; and that he was a victim of frame-up. The CBI, he passionately pleads, went to the extent of forging and/or not referring to the vital documents which came to light during investigations, which would completely knockout the case against the applicant, insofar as, at least, the FIR pertaining to the complaint of FERA accused Subhash Barjatya as regards a fax message showing transaction of USD 1.5 lakh, being a forged document, is concerned. 10. Before we may take into consideration the rival contentions of learned counsel representing the parties, we may first deal with the preliminary objections that have been raised on behalf of the respondents. Shri R. V. Sinha, learned counsel representing the respondents, even though no such objection has been raised in the counter reply, would contend that the present OA is barred by limitation. We do not find any bar of limitation in filing the present OA, as the cause of action would accrue to the applicant not only on the order of suspension, but on every review that may be carried out by the Government. The terminus a quo for limitation, in our view, would start from the date of suspension if only the said order is to be challenged. If, however, subsequent orders passed based upon the recommendations of the review committee for continuation of suspension are to be taken into consideration, each such order would provide a fresh cause of action to the applicant. The plea raised by the counsel representing the respondents that because of the decision in the earlier OA, the matter has attained finality, and, therefore, the present OA would be barred by the principle of res judicata/constructive res judicata, is equally unimpressive. Once we have held that every order would provide afresh cause of action to the applicant, there cannot be any res judicata. Be that as it may, it may be recalled that the first OA of the applicant was allowed. The second OA was dismissed, against which the applicant carried writ petition before the High Court, which was withdrawn enabling him to challenge the orders of suspension passed thereafter. It is during the pendency of the writ petition aforesaid that instructions dated 07.01.2004 dealing with review of suspension of Government servants came into being, and if it be the case of the applicant that the orders continuing his suspension were against the said instructions, that, in any case, would provide a fresh cause of action to the applicant. It is then urged that this Tribunal in the limited power of judicial review it has, may interfere in the order of suspension only if the same may be mala fide or passed by an officer who may be incompetent to do so, and there would be no other ground whatsoever available to the employee to call in question the order of suspension. We have no hesitation in rejecting the plea of the counsel representing the respondents, as noted above. Indeed, on the ground as stated by him, the order of suspension has to be set aside, but that does not mean that there cannot be any other ground to challenge the suspension. It would all depend upon the facts and circumstances of each case as to whether the order of suspension needs to be interfered by the Tribunal or not. 11. As regards the controversy on merits, we may mention at the very outset that it is not within the domain or purview of this Tribunal to evaluate the falsity or otherwise of the criminal charges on which the applicant is facing two trials. Such an exercise has to be done by the court of competent jurisdiction. However, the progress of two cases pending against the applicant is relevant. We will briefly take this exercise in hand, and refer to the judgments passed by the High Court of Delhi as well, but we may mention that irrespective of the findings of the High Court, of which we may make a mention, the fact is that against both the judgments, which are in favour of the applicant, SLP has been filed and the trial against the applicant has been stayed. The controversy as raked in the two matters taken by the applicant to the High Court is sub judice and would invite no comments whatsoever from our side. We are making a mention of these two cases only to find out their progress and the stage at which they are. Such factual aspects which may have surfaced during the pendency of the cases, on which there may be no dispute, even though mentioned in the judgments, would also be taken into consideration. The first case against the applicant, as mentioned above, pertains to the year 1999. The FIR in that regard came to be lodged against the applicant on 29.01.1999 by Mr. Abhijit Chakraborty, Additional Director, Enforcement Directorate, New Delhi, with the Delhi Special Police SIU-VIII Branch, against unknown officers of the Enforcement Directorate, Delhi Zone. Four instances of misconduct were mentioned in the FIR aforesaid, one out of which would disclose prima facie commission of criminal offence. It is the case of the prosecution, based upon the complaint that the Directorate conducted a search on 01.01.1998 at the office and residential premises of one Mr. Subhash Chander Bharjatya, as also his business premises. The investigating officer of the case was Mr. J. P. Kujur, Enforcement Officer. The then Assistant Director was Mr. Ravinder Nath, and the Deputy Director in-charge of the zonal office was the applicant. During search, the officers of the Directorate seized a fax message (debit advice) from one of the premises of Bharjatya, purportedly from Swiss Bank Corporation, Zurich, Switzerland, which reflected a debit of US$ 150,000 from the account of Royalle Foundation, Zurich, Switzerland in favour of one S. K. Kapoor, holder of account number 002-9-608080, Hong Kong & Shanghai Banking Corporation (HSBC), head office at Hong Kong, as per the advice of the customer, i.e., Royalle Foundation. Bharjatya filed a complaint dated 04.01.1998 alleging that the said fax message was a forgery and was planted in his premises during the course of search in order to frame him, and further that he and his employee were illegally detained on the night of 01.01.1998 and were threatened and manhandled. It is the case of the prosecution that the applicant is part of a criminal conspiracy to create a forged document and not only to use it as a genuine one, but to also create false evidence to implicate Bharjatya. The applicant is said to have entered into criminal conspiracy with Abhishek Verma with an object to frame Bharjatya in a FERA case, and in order to achieve the object of the conspiracy, a forged message purportedly sent by the Swiss Bank Corporation, Zurich, to Bharjatya at his fax number, was planted on the night of 31.12.1997, and on the next morning the Directorate conducted raid at the premises of Bharjatya and reference was made to the aforesaid fax message planted on Bharjatya s fax machine on the previous night. Before the Special Judge, Abhishek Verma moved an application for becoming approver and grant of pardon. All that needs to be further mentioned is that the Special Judge allowed the application, which order came to be challenged by the applicant before the High Court of Delhi. Number of pleas were raised in support of the petition filed in the High Court for quashing the order passed by the Special Judge. One of the pleas was that the impugned order would not disclose any awareness about the Letter Rogatory and subsequent correspondence exchanged between the prosecution/court and the Swiss authorities. It has been the case of the applicant that the fax message was not forged; it was indeed received, even though it may not be correct; and that there was no question of tampering the same. However, what really impressed the High Court was the illegal procedure adopted by the Special Judge in allowing the application for making Verma an approver and granting him pardon. The question as to whether the fax message was genuine or forged one was not gone into. In the ultimate analysis, the order passed by the Special Judge was set aside on the primary ground that the entire material was not placed before the Special Judge. The matter was remitted to the Special Judge to consider the application afresh in the light of the charge-sheet that had since been filed, the entire material available with CBI and also after obtaining the information about the various cases pending against Verma. This order came to be passed by a learned Single Judge of the High Court on 20.08.2007. Against the order aforesaid, as mentioned above, SLP was filed, in which stay of trial against the applicant is in existence till date. The matter has not come up for final adjudication yet before the Hon ble Supreme Court. 12. The other case against the applicant is as regards possession of disproportionate assets commensurate to his known sources of income. The applicant as regards the said case, has been sent for trial for offences u/s 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, 1988, read with section 120B and some other allied provisions of IPC. CBI obtained sanction to prosecute the applicant on 26.11.2002, before filing the charge-sheet against him, which was a condition precedent for taking cognizance of the offence under section 13 of the Act of 1988. The applicant challenged this order of sanction primarily on the ground that the entire material was not placed before the competent authority when the order of sanction to prosecute him was obtained. The plea prevailed and, therefore, a learned Single Judge of the High Court vide order dated 03.10.2007 set aside the order passed by the Special Judge, and remitted the matter to the trial court with direction to record a finding in terms of clause (b) of sub-section (3) and sub-section (4) of section 19 of the Act of 1988. It was observed that if the trial court may deem it fit, it could examine the sanctioning authority as a witness even before charge, keeping in view the provisions of section 311 CrPC. Against this order as well, SLP has been filed with the same interim orders as in the first case. This case too has not been listed so far for final adjudication by the Hon ble Supreme Court. 13. The applicant, who argued the matter at some length in person, and Mr. Gupta, who represents him, have, as mentioned above, urged before us that the Government in consideration of the fact that officers under suspension facing criminal trial or departmental proceedings may not remain under suspension all the while, have laid down instructions, by which there has to be a periodical review after every 90 days. The first order of suspension may continue for 180 days, whereafter it has necessarily to be reviewed after every 90 days, and that continued suspension of an employee without review within the period as mentioned above would be fatal, and, therefore, even if the delay be of a day or so, if the suspension has not been reviewed, the same shall have to be set aside. It is urged that there is a purpose of providing mandatory review after every 90 days, and that is to see whether any developments have taken place which may have a bearing upon continuation or otherwise of suspension of an officer, and if the same were not to be taken into consideration and order of review of suspension is to be passed mechanically without application of mind, the same would defeat the very object of the instructions, thus contend the applicant and his counsel. There cannot be any dispute as regards the object of issuing instructions to review suspension periodically, as mentioned above. There has indeed been no contest on this aspect of the case during the course of hearing. Having heard the learned counsel representing the parties, we are of the firm view that all developments that may be relevant to the continuation or otherwise of suspension of an employee have necessarily to be taken into consideration, as otherwise, the very purpose of laying down the instructions shall stand defeated. This has been so held by us in number of judgments. Once, there is no dispute as regards the object of laying down the instructions, it would be unnecessary to refer to such decisions, which will only burden the judgment. The applicant and his counsel would submit that not only wrong facts came to be recorded in the orders of suspension, but the respondents would not consider the developments that have taken place since last more than 12 years, for which period the applicant has remained under suspension, and that this in itself would be enough to vitiate the orders of suspension passed from time to time. 14. It may be recalled that the applicant, in addition to facing two criminal trials in the cases as mentioned above, was also put to departmental trial. Some of the orders extending suspension of the applicant record departmental proceedings as also one of the grounds for his continued suspension. It could be understood as long as the departmental proceedings were pending against the applicant, but, as mentioned above, both the enquiries have been set at naught by this Tribunal vide a common order dated 24.02.2010. Even though, the charge memorandum has been quashed on technical ground that the charges as framed against the applicant had not been approved by competent authority, and even permission has been granted to the respondents to proceed against the applicant after obtaining such an approval, but it is an admitted fact that even though a period of more than a year and nine months has gone by, the respondents have not obtained approval of the competent authority, i.e., the Finance Minister, and the applicant has not been served any fresh charge-sheet. Despite that, in the review carried out by the respondents vide order dated 15.07.2010, suspension of the applicant has been extended on the ground that the allegations made against him are grave in nature, as also that he had not filed written statement of defence (WSD) in another departmental proceedings. The reason that the applicant had not filed WSD is factually incorrect. Once on 15.07.2010, no departmental enquiry was pending against the applicant, there was no question for him to have filed any WSD. It is difficult to believe that the respondents who were party to the OA culminating into order dated 24.02.2010, would be oblivious of the charge memorandum against the applicant having since already been quashed and set aside. Be that as it may, mention of a totally wrong fact in the review order dated 15.07.2010 would tend to show non-application of mind and extending the period of suspension of the applicant in a casual manner. As mentioned above, it will not be permissible nor even appropriate for us to enter upon merits of the controversy, or, for that matter, truthfulness or falsity of the allegations made by the prosecution in the two FIRs against the applicant, in which the applicant is facing criminal trials, but, as mentioned above, the factual developments that may have taken place during the last twelve years, on which there is no dispute, can well be taken into consideration. In that context, we may mention that insofar as case RC No.S18/E0001/99 dated 29.01.1999 is concerned, a self-contained note was prepared and approved by the officers including Additional Secretary-cum-CVO, Department of Revenue in October, 2002 for being referred to Ministry of Law for opinion on withdrawal of prosecution in the case aforesaid. The applicant has placed on records notings from the concerned file. We may refer to some of the significant notings. In the noting dated 22.10.2002 with the caption S.P. s report in Criminal case RC S 18/1999 E0001 Ashok Kumar Aggarwal (IRS:85) withdrawal of sanction for prosecution reg. , it has been mentioned that the department had given sanction to prosecute the applicant on the basis of SP s report sent by CBI, and that the applicant had since been charge-sheeted in the court of Special Judge. The sanction was sought mainly on the ground that the applicant had initiated proceedings under FERA against one businessman, Subhash Barjatya, on a forged fax obtained through conspiracy with another FERA accused, namely, Abhishek Verma. Mention is then of the representation made by the applicant that CBI had not placed all the facts of the investigation before the sanctioning authority. The most crucial evidence in the matter was received by CBI in July, 2010 in response to a Letter Rogatory issued by the competent Indian court to verify from the Swiss authorities as to whether the fax was an original one and sent by Swiss Bank Corporation, whereupon the Swiss authorities had informed CBI through Indian Embassy in Switzerland in July, 2001 itself that the fax was a genuine one sent by the Bank to Mr. Barjatya, and these facts were not disclosed in the SP s report seeking sanction in the case. On being requested to comment on the representation of the applicant, CBI did not comment on these facts. The advice of Ministry of Law and Justice was sought on the points mentioned in the note. It is then stated that the representation of the applicant had been considered in the department, and a detailed self-contained note giving the summary of the case with specific issues on which advice had been sought, was placed in the file. We may extract some of the relevant parts of the self-contained note. The same read as follows: 18. Subsequent to the grant of sanction, Shri Aggarwal made representations dated 29.7.2002 (pp.332-345/cor.) and 13.8.2002 (pp.346/cor.) stating therein that from the charge sheet and the relied upon documents filed by the CBI on 28.6.2002 in the Special Court, he found that the alleged fax message dated 23.12.1997 (page 351/cor) seized by the Enforcement officials during the course of search at the shop of Shri Barjatya on 1.1.98, was a genuine message sent by Swiss Bank Corporation, Zurich and not a forged one as alleged by Shri Barjatya and the CBI. Federal Department of Justice and Police, Berne, Switzerland in its reply to Letter Rogatory (LR) sent by the Special Judge, CBI Court, Delhi, has stated that the said fax message dated 23.12.1997 was in fact sent by Swiss Bank Corporation, Zurich and a confirmation to this effect was also sent by Swiss Bank Corporation to Shri Barjatya on 13.1.1998 wherein the bank had also apologized for any inconvenience caused to Shri Barjatya. These documents were sent by Minister, Embassy of India, Berne vide his letter dated 18.7.2001 (pp.362-367/cor.) to S.P., CBI, Delhi. The fact of transmission of the alleged fax message by Swiss Bank Corporation, Zurich, as a genuine document and not a forged document, was very much with CBI since July, 2001, yet these facts were not narrated/included in the S.P. s report. 23. While obtaining grant of sanction for prosecution against Shri Aggatrwal, CBI s main allegation has been that he took action against Shri Subhash Barjatya under FERA on the basis of a forged fax obtained through a conspiracy for financial consideration. This allegation has been denied and it has been confirmed that the fax was a genuine one in a reply in a letter dated 11.07.2001 from Federal Department of Justice and Police, Switzerland in response to a Letter Rogatory issued by the Court of Special Judge for CBI cases (as part of the annexures of letter dated 18.7.2001 from Minister, Embassy of Switzerland). This letter was received by CBI on 30.07.2001 as evident from the additional document furnished by Shri Aggarwal on 24.09.2002 (pp.360-367/cor.). 24. It is not clear as to how CBI, the apex investigating agency, did not consider it appropriate to include such a vital information received in response to Letter Rogatory in the S.P. s Report while seeking grant of sanction for prosecution. The reply received by CBI on 30.07.2001 in response to Letter Rogatory brings out clearly that the alleged fax dated 23.12.1997 was a genuine one. 15. As mentioned above, we may not be concerned with the legal issue raised by the applicant before the High Court as to whether Abhishek Verma, an accomplice of commission of crime with the applicant, could be an approver, or for that matter, he could be pardoned, but, surely, the factual aspect of the case, as mentioned above, which emanates from none other than the respondents themselves, and is really a significant issue and, it appears, has not been taken into consideration in any of the orders of review extending the period of suspension of the applicant. Issuance of Letter Rogatory is a fact not in dispute. The fax message is said to have been forged by Abhishek Verma at the instance of the applicant. If on the Letter Rogatory it comes that the fax message was indeed received, would not that be relevant to form an opinion as regards the seriousness of the crime committed by the applicant? As mentioned above, we may not give our opinion on this issue at this stage at least, but surely, this was a development germane to consider the continuation of suspension of the applicant, and as mentioned above, does not appear to have been taken into consideration ever. 16. As regards the other case against the applicant of possessing assets disproportionate to his known sources of income, registered against him under provisions of the Prevention of Corruption Act, Shri Jaswant Singh, the then Finance Minister, had submitted an affidavit in the court of Special Judge, CBI on 03.11.2007, wherein it is mentioned that he was the Finance Minister during the period and was the sanctioning authority. He, while confirming the statement of facts in paragraph 8 and some other paragraph of the order of the High Court, which cannot be read from the photo copy of the affidavit available at pages 194-195 of the paper book, stated that no statement of witnesses or documents relied in the charge-sheet are ordinarily forwarded to the Finance Minister of the day, and what is sent is a draft order, whereafter sanction by the Minister is normally a routine acceptance of the draft. It is further stated that what was considered by him was only that which was sent or recommended to him, and that if the obligation was to consider more than which was sent, then that had not been done, and, therefore, unwittingly prejudice might have been caused and justice miscarried. It is then stated that he would leave it to the court to decide the matter. This affidavit of the then Finance Minister, once again, it appears, was never considered by the concerned authorities while extending the period of suspension of the applicant. It is the positive case of the applicant that he had made a representation on 17.12.2009 and supplied number of orders passed by the courts, including two orders passed by the High Court of Delhi ordering registration of two FIRs against two CBI officers for fabricating documents and conducting padded investigation, as also the affidavit filed by the then Finance Minister (sanctioning authority), as referred to above, and yet, as mentioned above, the said fact would not be considered by the respondents. It is further the positive case of the applicant that the minutes of the review committee would show that despite having received the representations of the applicant, the review committee, on few occasions, observed that no representation had been preferred by the applicant, and on other occasions, though the committee would refer to few of the representations made by the applicant, yet these representations remained unattended and undecided by the competent authority. 17. Ministry of Law, on a VIP s reference, sent its legal opinion on the validity of two sanction orders dated 21.06.2002 and 26.11.2002. Copy of the said opinion has been placed on records through a miscellaneous application dated 08.08.2011. Perusal thereof would reveal that the reference was sent by Ministry of Finance, Department of Revenue, as regards legality of the sanction granted against the applicant, an officer of IRS. The reference was from an MP, stating that the case of the applicant was a case of gross injustice, who was suffering for more than a decade on account of two frivolous complaints filed by CBI out of personal grudge against him. From the contents of the letter, it was considered proper that the issue regarding grant of sanction against the applicant be carefully examined from legal angle. We may only refer to the relevant parts of the opinion. The same read, thus: 15. In the instant cases, in the sanction orders it is mentioned that sanction has been accorded after fully and carefully examining the material placed before him including the documents and statement of witnesses with regard to said allegations. But the noting/correspondence of the files of the administrative Department do not subscribe to or support the claim made in the sanction orders, as admittedly no such documents and statement of witnesses were ever provided to the sanctioning authority by CBI. 16. In view of the above legal and factual analysis, it is established that the claim in both the orders that the sanction has been accorded after fully and carefully examining the material placed before him including the documents and statement of witnesses with regard to the said allegations, is factually incorrect. An inference may, therefore, be validly drawn that the sanction orders dated 21.6.2002 and 26.11.2002 had been issued without proper application of mind as all the relevant and relied upon material/documents, which admittedly had not been supplied by the CBI to the sanctioning authority. As such, both the aforesaid sanction orders suffer from legal infirmity and are invalid. Hence, in the interest of justice, the administrative Department may take appropriate action(s) in the matters It is the case of the applicant that in the light of the legal opinion aforesaid, he made a representation on 11.07.2011 to the Revenue Secretary, but the same was not considered by the review committee in its meeting held thereafter in July, 2011. This development, in our view, also had a bearing upon the desirability of continuing or otherwise of suspension of the applicant. 18. The respondents in their reply, while defending the continued suspension of the applicant for the last more than twelve years, have primarily relied upon the opinion of CBI that the suspension of the applicant may not be revoked. It is the case of the applicant that the stand taken by the respondents is factually incorrect. In the rejoinder filed by the applicant, he has referred to all the reviews carried out from 22.06.2008 to 15.07.2010, under the caption Comments under heading CBI s Views , as follows: 22.8.2006: There is no such hearing and as such, no comments given which proves that no comments from CBI were actually sought. 8.2.2007: There is no such hearing and as such, no comments given which proves that no comments from CBI were actually sought. 16/21.8.2007: There is no such hearing and as such, no comments given which proves that no comments from CBI were actually sought. 15.2.2008: The DIT(V)(NZ) has informed that the trial is pending and no recommendation for revoking the suspension has been made (Comments: It is pertinent to mention that vide order dated 10.12.2007 passed by Hon ble Supreme Court, the proceedings in the trial court in both the pending CBI cases had been stayed. It seems that CBI never sent any reply at this time as otherwise, this fact of stay of proceedings would have been certainly mentioned or otherwise, if the said crucial fact of stay of proceedings was mentioned, the same was never put up before the Review Committee and as such, the same was not considered at all.) 8.8.2008: The DIT(V)(NZ) vide letter dated 22.07.08 has intimated that the trial is continuing and case is fixed for 16.09.08. There is no recommendation of revocation from the CBI. (Comments: Once again, crucial fact of stay of proceedings in both the pending cases in the trial court by Hon ble Supreme Court vide order dated 10.12.2007 was neither put up before the Review Committee nor considered by it.) 3.2.2009: The DIT(V)(NZ) vide letter dated 12.01.09 to intimate the present status of the case and the CBI s comments. The reply is still awaited. (Comments: The review of suspension was admittedly conducted in the absence of any status report in the pending cases as well as in the absence of any comment from CBI and once again, crucial fact of stay of proceedings in both the pending cases in the trial court by Hon ble Supreme Court vide order dated 10.12.2007 was neither put up before the Review Committee nor considered by it.) 3.8.2009: The DIT(V)(NZ) has informed that the trial is pending and no recommendation for revoking the suspension has been made. (Comments: Once again, wrong facts were presented before the Review Committee and the most crucial fact of stay of proceedings in both the pending cases in the trial court by Hon ble Supreme Court vide order dated 10.12.2007 was neither put up before the Review Committee nor considered by it.) 20.1.2010: The DIT(V)(NZ) has informed that the CBI had been requested to intimate the present status along with their comments on revocation/ continuation of suspension but no reply had been received from them. (Comments: The review of suspension was admittedly conducted in the absence of any status report in the pending cases as well as in the absence of any comment from CBI. The crucial fact of stay of proceedings in both the pending cases in the trial court by Hon ble Supreme Court vide order dated 10.12.2007 was camouflaged by wrongly stating under the head of Disciplinary Proceedings that the criminal proceedings against the officer have also been stayed by the Supreme Court . The said development was not at all considered by the Review Committee.) 15.7.2010: The DIT(V)(NZ) has informed that the trial is pending and no recommendation for revoking the suspension has been made. (Comments : Once again, wrong facts were presented before the Review Committee. The crucial fact of stay of proceedings in both the pending cases in the trial court by Hon ble Supreme Court vide order dated 10.12.2007 was camouflaged by wrongly stating under the head of Disciplinary Proceedings that the criminal proceedings against the officer have also been stayed by the Supreme Court . The said development was not at all considered by the Review Committee.) Before we may part with this aspect of the case, we may mention that even if the opinion of CBI may be available with the review committee at the time of extension of suspension of the applicant, there is no mention in the reply that the opinion of CBI to continue the suspension was based upon certain facts. Normally, be it CBI or any investigating agency, it may opine continuation of suspension on seriousness of the offence and the likelihood of an accused tampering with evidence. The two criminal cases registered against the applicant, it would appear to us, would be based upon documentary evidence. The investigation in both cases is complete and the final report or challan under section 173 Cr.PC has already been submitted in the court. There is no doubt that an influential person involved in a crime may be able to suborn the witnesses or tamper with evidence even after challan may have been put up in the court, but surely and admittedly, the intensity of the plea as regards tampering with evidence, after the challan is put up in the court diminishes manifolds. In OA No.3944/2010 recently decided by us on 19.05.2011 in the matter of Ajoy Kumar Singh v Union of India & others, on the issue as mentioned above, we observed as follows: In criminal trials, the plea that the accused would tamper with the evidence or influence witnesses is normally taken till such time the challan is presented in the court. Challan is put up in the court only when investigation is complete, and the prosecution is of the view that it has collected evidence enough which may sustain conviction. By the time thus, challan is presented, entire documentary evidence is collected and statements of witnesses who are to support the prosecution version are also recorded. No doubt, the witnesses can be influenced at any time both before and after presenting the challan, but the plea as regards influencing the witnesses is normally taken, be it a case of opposing the bail or continuing an employee under suspension, till such time the challan is presented in the court, as otherwise, if this plea is to be taken even after presenting the challan, no one may ever get bail and suspension in his case would be continued till such time at least material evidence is recorded The submission of final reports in court, the two criminal cases based upon documentary evidence, wherein challan has already been presented in the court, thus there being minimal chances of tampering with evidence, was yet another circumstance which ought to have been taken into consideration, but would not appear to have been mentioned in any of the orders of review. Further, the fact that the applicant is on suspension for a period of twelve years or so, and there are no chances of culmination of the trial against him in near future, and as mentioned above, the nature of controversy, status of the criminal cases and the fact that the trial has not even commenced so far, may exhaust the remainder of the service of the applicant in litigation only, was yet another circumstance which ought to have been taken by the respondents into consideration. Chapter 2 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, deals with suspension. In para 2 (3) dealing with the effect of suspension, it has been observed, Suspension may also cause a lasting damage to the Government servant s reputation and its stigma is not easily washed away, even if he is ultimately exonerated or awarded only a minor penalty and reinstated . In Chapter 3 dealing with Suspension General Orders , in para 9(2) as regards follow-up action in suspension cases and time-limits prescribed therefor, it is mentioned that Even though suspension may not be considered as a punishment, it does constitute a very great hardship for a Government servant. In fairness to him, it is essential to ensure that this period is reduced to the barest minimum . The Hon ble Supreme Court in O. P. Gupta v Union of India [AIR 1987 SC 2257] has observed that the suspension of an employee may not be per se illegal, but when it has been prolonged for a considerably long period, it becomes punitive. The applicant has cited some illustrations, where employees were involved in extremely serious offences like accepting illegal gratification, caught red handed in trap cases, and where the Government, considering delay in finalization of criminal cases of departmental enquiries, as the case may be, reinstated them in service. In that regard, pertinent reference may be made to the case of Shri H. A. Siddiqui, Addl. Commissioner of Income Tax who was trapped for demanding and accepting illegal gratification of Rs.1 lakh and was facing trial under the Prevention of Corruption Act. His suspension was revoked with the following reasoning: Keeping in view of all facts and circumstances of the case including the fact that the officer filed his written statement of defence and the fact that as per DOPT s guidelines, the officer cannot be put on suspension for indefinite period which entails payment of subsistence allowance without the services of the suspended officer being utilized, the Review Committee recommends for revocation of suspension. This Tribunal recently decided OA No.3698/2011 on 07.12.2011 in the matter of Ravi Inder Singh v Union of India, which judgment may not be to the notice of the learned counsel representing the parties. Applicant in the OA aforesaid, an IAS officer of 1994 batch, while on central deputation, was placed under suspension on serious allegations that while he was holding the post of Director in the Ministry of Home Affairs, he indulged in passing on valuable information to some businessmen in Delhi and Mumbai to be used by them for their business purposes, for pecuniary benefits to him and others. He was arrested on 23.11.2010, but later on allowed bail by the High Court of Delhi. He challenged his continued suspension. This Tribunal, on records, found that even though the allegations made against the applicant were of serious nature, the Government itself noted that investigation in the FIR had already been completed, supplementary charge-sheet against him had already been filed, and that the case was under trial and the officer was already out on bail. It was mentioned in the note prepared in that behalf that the review committee did not find much justification for keeping the applicant under continued suspension indefinitely and paying him subsistence allowance without taking any work. Considering the view of the Government itself so as not to keep him under prolonged suspension, the Tribunal ordered that since the same had been extended up to 17.12.2011 only, and the Government itself had taken the view to revoke his suspension after the said date, there would be no need to pass any further orders. Of course, liberty was given to the applicant that if despite the decision of the Government, his suspension may not be revoked, he may file a fresh OA. We may not be comparing the case of the applicant with others, as continuation or revocation of suspension may depend upon the facts and circumstances of each case, but what can certainly be said is that delay in finalization of criminal cases or departmental enquiries is certainly one of the grounds to revoke the suspension, and may be, if the allegations against an employee may be serious, to give him a non-sensitive posting. 19. Shri R. V. Sinha, learned counsel representing the respondents, in his endeavour that the present OA may be dismissed, would contend that the applicant is facing prosecution in two criminal cases which are of serious nature, and irrespective of the time that may have elapsed from the date the applicant was placed under suspension, till date, there would be no occasion for this Tribunal to interfere. The learned counsel for his contention that where criminal charges faced by an employee are serious and even though, sufficient time may have elapsed when he might have been put suspension, and yet no interference may be caused by the courts, would place reliance upon the decision of the Hon ble Supreme Court in Allahabad Bank & another v Deepak Kumar Bhola [(1997) 4 SCC 1], and a decision of this Tribunal in OA No.1091/2006 decided on 19.03.2009 in the matter of A. A. Farooquee v Union of India & others. The facts of the case in Allahabad Bank (supra) would reveal that the employee therein was working as Clerk-cum-Typist in Allahabad Bank. An investigation was conducted and a case was registered against him on 29.08.1986. On the report of CBI, the Bank accorded sanction for prosecution of the respondent employee. He was suspended on 23.09.1987. The allegations against him were that while functioning as Clerk-cum-Typist during the year 1984-85, he entered into a criminal conspiracy with Ajay Bhatia, Clerk-cum-Cashier, H. R. Gurnani, advocate and some unknown persons with the common object to commit the offences of criminal misconduct and cheating by adopting corrupt and illegal means or otherwise abusing his position by obtaining undue pecuniary gain for self and/or others. He was said to have committed forgery and wrongfully withdrawn money from the Bank. The employee challenged his order of suspension before the High Court, which came to the conclusion that by the mere fact that a person had entered into criminal conspiracy, it could not be construed that an offence involving moral turpitude had been committed and, therefore, the employer had no jurisdiction to pass the order of suspension. The main point involved in the case aforesaid was as to whether the allegations against the employee would amount to moral turpitude, as pursuant to the provisions contained in clause 19.3(a) of the First Bipartite Settlement, 1966 between the management and the union, an employee could be put under suspension if the allegations were to be of moral turpitude. The judgment of the High Court was set aside by the Apex Court. We may not be concerned in this case with the issue as regards the allegations amounting to moral turpitude or not. What has, however, been highlighted by the counsel representing the respondents is that even though ten years had gone by since the charge-sheet had been filed against the employee, the Apex Court still observed that this could also not be a ground for allowing the respondent employee to come back to duty on a sensitive post in the Bank, unless he was to be exonerated of the charges. Prolonged suspension of an employee, it is thus urged by the learned counsel, would be no ground to interfere with the order of suspension or continuance thereof. There can be no dispute that when it may be a case of serious allegations, pending criminal trial or departmental enquiry, or even in contemplation of departmental enquiry, an employee can be placed under suspension. As to whether the suspension needs to be revoked or continued, would, in our view, however, depend upon the facts and circumstances of each case. No straitjacket formula in that regard can be laid. However, after the provisions as regards mandatory review of suspension came into being, howsoever serious the allegations may be against an employee, the stock of the situation has to be taken and the developments that may have taken place have to be taken into consideration, as otherwise, as mentioned above, the very object of laying down periodical reviews, which are mandatory now, would be of no meaning and consequence. The developments that may take place from time to time may further lessen or aggravate the allegations against an employee. The same may reveal some extenuating circumstances, resulting into toning down, or some time even falsity of the allegations. All that we are observing and would thus ultimately conclude is that the Government is obliged under law to take into consideration all such developments that may be relevant for consideration of revocation or continuation of suspension of an employee, and in this case, we are of the considered view, relevant factors or developments, as fully detailed above, have not been taken into consideration. There would be no need to refer to the facts of the case decided by this Tribunal in the case of A. A. Farooqui (supra) which is, once again, for the proposition that the mere fact that a long time may have elapsed since the employee has been placed under suspension, would not in itself be enough to revoke the suspension. 20. We were handed over an order dated 18.07.2011 continuing suspension of the applicant, which may have been pursuant to the review committee meeting. It is obvious that another review might have been carried out as the same has to be mandatorily done in ninety days. 21. In totality of the facts and circumstances of this case, we dispose of this Original Application by directing the respondents to convene a meeting of the review committee within a period of two weeks from today to reconsider revocation or continuation of suspension of the applicant after taking into consideration the factors as fully detailed above. If the view of the review committee and that of the competent authority may still be to continue the suspension of the applicant, speaking order in that regard shall be passed. Reasons although in brevity may be stated, but the points raised by the applicant, and as mentioned above, shall have to be met. If the grievance of the applicant may still subsist, it shall be open for him to file fresh Application challenging the order to be now passed. In peculiar facts and circumstances of the case, costs of the litigation are made easy. ( Dr. Ramesh Chandra Panda ) ( V. K. Bali ) Member (A) Chairman /as/
Posted on: Tue, 03 Dec 2013 17:36:47 +0000
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